Jackie Lee Bibbs v. State

Opinion

NO. 07-10-00300-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 21, 2011

JACKIE LEE BIBBS, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY;

NO. 1160104D; HONORABLE GEORGE W. GALLAGHER, JUDGE

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ORDER OF ABATEMENT AND REMAND

Appellant, Jackie Lee Bibbs, has filed a “Motion to Dismiss Appellant Counsel

and Proceed Pro Se” that seeks removal of appellant’s court-appointed appellate

counsel, and requests that appellant be allowed to represent himself on appeal. We

abate and remand for further proceedings.

Appellant was convicted of the offense of capital murder and sentenced to

confinement in the Institutional Division of the Texas Department of Criminal Justice for

life. On the same date that appellant was sentenced, J. Warren St. John was appointed

as counsel to assist appellant in pursuing the present appeal. St. John filed a brief on behalf of appellant on January 20, 2011. This brief raises six issues and prays for

reversal of appellant’s conviction. On February 3, appellant filed a “Motion to Withdraw

Appellant Brief Due to Actual Conflict of Interest” which alleged that appellate counsel’s

failure to raise certain issues created a conflict of interest between appellant and

counsel, and requested that this Court abate the appeal and remand the cause to the

trial court to conduct an evidentiary hearing regarding the alleged conflict. However, our

review of this motion led to the conclusion that appellant was not seeking to represent

himself on appeal, but rather that he was attempting to raise additional issues in his

appeal beyond those that were raised by counsel in his brief. Consideration of this

motion would, therefore, constitute hybrid representation, which is not allowed. See Ex

parte Taylor, 36 S.W.3d 883, 887 (Tex.Crim.App. 2001). As such, this Court notified

appellant that it would not consider or act on his pro se motion while he is represented

by counsel. On September 8, appellant filed a “Motion to Dismiss Appellant Counsel

and Proceed Pro Se” that seeks removal of appellant’s court-appointed appellate

counsel and requests that appellant be allowed to represent himself on appeal.

An accused has the right to assistance of counsel in trial and appellate

proceedings. See Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d

799 (1963); Buntion v. Harmon, 827 S.W.2d 945, 948 (Tex.Crim.App. 1992). However,

because an appellant has no constitutional or statutory right to self-representation on

appeal, we will review a criminal appellant's request for self-representation on a case-

by-case basis that considers the best interest of the appellant, the State, and the

administration of justice. See Cormier v. State, 85 S.W.3d 496, 498 (Tex.App.--Houston

[1st Dist.] 2002, no pet). However, under no circumstance is an appellant entitled to 2 hybrid representation on appeal. Ex parte Taylor, 36 S.W.3d at 887; Rudd v. State, 616

S.W.2d 623, 625 (Tex.Crim.App. [Panel Op.] 1981). If problems with counsel arise, it is

incumbent upon appellant to inform the court in a timely manner. See Hubbard v. State,

739 S.W.2d 341, 344 (Tex.Crim.App. 1987). An appellant cannot use his desire for self-

representation or any friction existing between himself and appointed counsel as a

means of manipulating or obstructing the orderly procedure of the court or interfering

with the fair administration of justice. Martinez v. State, 163 S.W.3d 88, 90 (Tex.App.—

Amarillo 2006, order) (disposition on merits at 163 S.W.3d 92 (Tex.App.—Amarillo

2005, no pet.)).

In the present case, appellant informed this Court of problems that he perceived

with appointed counsel’s representation in this appeal. Although appointed counsel has

acted timely and has raised six issues in the brief filed on appellant’s behalf, appellant

contends that alleged trial errors have not been addressed by St. John and that these

errors will be waived if not raised in this direct appeal. Consequently, appellant

requests to represent himself as a means to ensure that all alleged errors will be raised.

We abate this appeal and remand the matter to the trial court for further

proceedings. Upon remand, the trial court shall determine the following:

1. whether appellant desires to prosecute the appeal; 2. whether appellant’s request to remove appointed counsel and represent himself is an attempt to obstruct court procedure or interfere with the fair administration of justice; 3. whether appellant asks to waive appointed counsel and represent himself pro se;

3 4. If appellant opts to represent himself, whether appellant's decision is competently and intelligently made, including whether appellant is aware of the dangers and disadvantages of self-representation, see Hubbard, 739 S.W.2d at 345, and that appellant’s self-representation requires that his appointed counsel’s brief will be withdrawn in toto; and 5. if appellant wishes to proceed pro se, whether allowing him to do so is in his best interests, the State’s best interest, and is in furtherance of the proper administration of justice.

We further direct the trial court to issue findings of fact and conclusions of law

addressing the foregoing subjects. Additionally, the trial court may hold hearings and

enter orders as the court deems necessary regarding the aforementioned issues and

shall cause its findings and conclusions and any orders entered to be included in a

supplemental clerk's record. A supplemental reporter's record of any hearing held shall

be transcribed.1 Finally, the trial court shall file the supplemental clerk's record and the

supplemental reporter's record with the Clerk of this Court by Monday, November 21,

2011.

Per Curiam

Do not publish.

1 While appellant must be afforded an opportunity to personally participate in the abatement proceeding, this does not necessarily mean that the appellant must personally appear before the trial court. See Fewins v. State, 170 S.W.3d 293, 294 (Tex.App.--Waco 2005, no pet.) (trial court given discretion to fulfill duties via teleconference and/or postal service). 4